Brookings Institution, June 28, 2012 It was always easier to count to five for an opinion upholding the Affordable Care Act than for one striking it down. In order to strike it down, all five of the high court’s conservatives would have to be rock-solid, they would have to stand together on everything. If one […]
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ConText: An Experiment in Crowd-Sourced Commentary
Brookings Institution, March 16, 2012 What do the Constitutional Convention, the Talmud, and Wikipedia have in common? That’s the question behind a new project Brookings has launched in partnership with the Center for the Constitution at James Madison’s Montpelier. The project, about which I am deeply excited, is at one level an attempt to bring […]
A Guantánamo Bay Habeas Corpus Case on Constitution Day
Brookings Institution, September 17, 2010 Today, to celebrate Constitution Day, I wandered down to the D.C. Circuit Court of Appeals to listen to oral arguments in a Guantánamo Bay habeas corpus case. Okay, I admit, I didn’t exactly go to celebrate Constitution Day. I went because the court was hearing a case in which I […]
State of Civil Unions: California Court Strikes Down Marriage Ban
The New Republic, May 20, 2008 “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president,” the Obama campaign stated oh-so-carefully in response to this week’s California Supreme Court decision striking down the state’s ban on gay marriage.” He […]
Unusual Nonsense: Supreme Court’s Decision about “Cruel and Unusual Punishment”
The New Republic, April 28. 2008 The Supreme Court recently gave the country an object lesson in the absurdity of the Eighth Amendment – at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states […]
What Happens If the Supreme Court Recognizes Individual Gun Rights? Not Much.
The New Republic, March 21, 2008 One thing seemed clear from Tuesday’s Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court’s conservatives–save Justice Clarence Thomas, who maintained his customary silence at arguments–evinced little […]
Gun Shy: The Justice Department Weighs in on the Second Amendment
The New Republic, January 25, 2008 Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide. In May 2001, then-Attorney General John Ashcroft wrote a letter to the National Rifle Association stating “unequivocally my view that the text and the original intent of the Second Amendment clearly protect the […]
Why I’m Not Looking Forward to the New Supreme Court Term
The New Republic, October 1, 2007 It’s the first Monday in October, the day the Supreme Court begins its term, and I’m supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the […]
The Supreme Court’s Shift on Abortion is Not What You Think
The New Republic, April 30, 2007 The Supreme Court’s recent partial-birth abortion decision solidifies a big shift in abortion law–but probably not for the reason you think. The most important language in the opinion does not substantively alter the scope of the right to choose, nor does it expand the right to life. It is […]
The Supreme Court’s EPA Ruling Isn’t As Important As You Think
The New Republic, April 16, 2007 “It would be hard,’ The New York Times declared, ‘to overstate the importance of [the April 2] ruling by the Supreme Court that the federal government has the authority to regulate the carbon dioxide and other greenhouse gases produced by motor vehicles.” Not that the Times wasn’t going to […]
Ditch the Second Amendment
The New Republic, March 19, 2007 The New York Times editorial page accused the appeals court panel that on March 9 struck down portions of Washington, D.C.’s ultra-strict gun-control law of storming “blithely past a longstanding Supreme Court precedent, the language of the Constitution and the pressing needs of public safety.” My former colleagues at […]
Marital Differences
The Atlantic Magazine, May 2006 Will this year’s midterm elections feature a new raft of state ballot initiatives to ban same-sex marriage? Definitely. Voters in eighteen states have already passed such bans, and the ballot initiatives have proven to be a major base-mobilizer for conservatives—so this year, there will be more. At least six states—Alabama, […]
Justice Delayed
The Atlantic Magazine, March 2006 Whatever happened to Zacarias Moussaoui? Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, […]
Without Precedent
The Atlantic Magazine, September 2005 Conservatives complain that the Supreme Court is too liberal. Liberals complain that it’s too conservative. Both charges are inaccurate: in reality the Court is a careful political actor that arguably represents the center of gravity of American politics better than most politicians do. The real problem is not the Supreme […]
The Hapless Toad
The Atlantic Magazine, May 2005 Liberals talk as if the world will end if President Bush gets to name some new Supreme Court justices. How much of the danger is hype, and how much of it is real? It’s mostly hype. In general liberals fear conservative judges far too much. In almost all areas, in […]
Letting Go of Roe
The Atlantic Magazine, January / February 2005 Are we about to suffer through another horrible Supreme Court nomination dominated by abortion politics? Bet on it. With Chief Justice William Rehnquist seriously ill, the prospect of a Supreme Court vacancy early in George Bush’s second term looms over American politics. The script for this—and every—Republican high-court […]
Supreme Irony
The Atlantic Magazine, November 2004 According to a New York Times editorial, George Bush says that if re-elected, he would “try to finish packing the [Supreme] Court against Roe v. Wade, the decision validating abortion rights, which four members say they want to strike down.” If voters elect a Democratic President, the Republican candidate predicts, […]
Suspended Sentencing
The Atlantic Magazine, October 26, 2004 When Dwight W. Watson first came before U.S. District Judge Thomas Penfield Jackson for sentencing, on June 23, the judge gave him six years in prison. Watson was the North Carolina tobacco farmer who paralyzed a section of Washington, D.C., for two days last year by driving a tractor […]
Benjamin Wittes 